ACCEPTANCE OF AGREEMENT
DEFINITIONS AND INTERPRETATION
3.1. Defined Terms
Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:
- “Affiliate” means, with respect to a party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly controls, is controlled with or by, is under common control, or is in direct contract for the provision of services with such party.
- “FracInvest Developer API” means the open API which is utilized to support all FracInvest products and technologies.
- “Applicable Law” means the laws of the USA as the same may be amended, modified, supplemented and in effect from time to time during the Term (as defined below).
- “Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in the USA are authorized or required to close.
- “NFT” means Non-Fungible Token.
- “FracInvest Ecosystem” means the Avalanche blockchain ecosystem under the name “FracInvest Digital” that will initially consist of a collateralized debt position synthetic asset protocol, an automated market maker protocol, and other features to be determined by the Company and its Affiliates.
- “Profile Information” means the information you may be required to provide to us to register for the Service, including as applicable, Wallet address, name and address, as well as the username and password that may be required to allow you to access the Service, as such information shall change from time to time.
- “Wallet” means a Phantom electronic wallet, which allows Users to purchase and store cryptocurrencies, and sign/engage in transactions on the Avalanche Blockchain, or any other supported wallet which provides similar functionality on the Avalanche Blockchain.
Purpose of the Website.
Use of the Website.
Conditions of Use
4.3.1 User Representations and Warranties.
As a condition to accessing or using the Services, you represent and warrant to FracInvest the following:
- If you are entering into these Terms as an individual, then you have the legal capacity to enter into these Terms and be bound by them. If you are entering these Terms as an entity, then you must have the legal authority to accept these Terms on that entity’s behalf, in which case “you” (except as used in this paragraph) will mean that entity.
- You must not be a resident, citizen or agent of, or incorporated in, and do not have a registered office in Cuba, North Korea, Iran, Libya, Iran, Lebanon, China, Central African Republic, Sudan, Syria, Somalia, Venezuela, Yemen, Russia, Myanmar (Burma), the regions of Crimea, Donetsk or Luhansk, or any other country or region that is the subject of comprehensive country-wide or region-wide economic sanctions by the United States (collectively, “Restricted Territories”).
- You are not the subject of economic or trade sanctions administered or enforced by any governmental authority or otherwise designated on any list of prohibited or restricted parties (including the list maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury) (collectively, “Sanctioned Person”).
- You do not intend to transact with any Restricted Person or Sanctioned Person.
- You do not, and will not, use a VPN or any other privacy or anonymization tools or techniques to circumvent, or attempt to circumvent, any restrictions that apply to the Services.
- Your access to the Services (a) is not prohibited by and does not otherwise violate or assist you to violate any domestic or foreign law, rule, statute, regulation, by-law, order, protocol, code, decree, or another directive, requirement, or guideline, published or in force that applies to or is otherwise intended to govern or regulate any person, property, transaction, activity, event or other matter, including any rule, order, judgment, directive or other requirement or guideline issued by any domestic or foreign federal, provincial or state, municipal, local or other governmental, regulatory, judicial or administrative authority having jurisdiction over FracInvest, you, the Website or the Services, or as otherwise duly enacted, enforceable by law, the common law or equity; and (b) does not contribute to or facilitate any illegal activity.
- From time to time, the Service may be inaccessible or inoperable for any reason, including: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs that FracInvest or any of our suppliers or contractors may undertake from time to time; (c) causes beyond FracInvest’s control or that FracInvest could not reasonably foresee; (d) disruptions and temporary or permanent unavailability of underlying blockchain infrastructure; or (e) unavailability of third-party service providers or external partners for any reason.
- We reserve the right to disable or modify access to the Services (such as restricting features of the Services) at any time in the event of any breach of these Terms, including, if we reasonably believe any of your representations and warranties may be untrue or inaccurate, and we will not be liable to you for any losses or damages you may suffer as a result of or in connection with the Services being inaccessible to you at any time or for any reason.
- The Services may evolve, which means FracInvest may apply changes, replace, or discontinue (temporarily or permanently) the Services at any time in our sole discretion.
- The pricing information and other data provided on the Website does not represent (i) an offer, a solicitation of an offer, or recommendation to enter into, a transaction with FracInvest (other than the payment of fees to FracInvest) or (ii) any advice regarding a transaction entered into using the Service.
- FracInvest does not act as an agent for you or any other user of the Service.
- You are solely responsible for your use of the Service, including all of your transfers of Digital Assets and any profits or losses you incur.
- To the fullest extent not prohibited by Applicable Law, we owe no fiduciary duties or liabilities to you or any other party, and that to the extent any such duties or liabilities may exist at law or in equity, you hereby irrevocably disclaim, waive, and eliminate those duties and liabilities.
- You are solely responsible for reporting and paying any taxes applicable to your use of the Services.
- We have no control over, or liability for, the delivery, quality, safety, legality, or any other aspect of any Digital Assets that you may transfer to or from a third party, and we are not responsible for ensuring that an entity with whom you transact completes the transaction or is authorized to do so, and if you experience a problem with any transactions in Digital Assets using the Services, then you bear the entire risk.
- We or our Affiliates may, from time to time, operate contests, promotions, sweepstakes or other activities or offer referral programs (“Promotions and Referrals”), which may be governed by separate terms and conditions and rules that may contain certain eligibility requirements; and you are responsible for reading all terms and conditions and rules relating to the Promotions and Referrals to determine whether you are eligible to participate. If you choose to enter or participate in any Promotions and Referrals, then you agree to abide by, and to comply with, all terms and conditions and official rules of such Promotions and Referrals.
- If you receive discounts on fees from any Promotions and Referrals that are not subject to separate terms and conditions and rules, then FracInvest reserves the right to add to, modify or eliminate the discounts and any other aspect of such Promotions and Referrals at any time in our sole discretion.
- Use the Service in any manner that could damage, disable, overburden, or impair the Website or interfere with any other party’s use of the Service.
- Attempt to gain unauthorized access to any Website account, Wallet, or computer systems or networks associated with the Company or the Website.
- Obtain or attempt to obtain any materials or information through the Service by any means not intentionally made available or provided by the Company.
- Use any robot, spider, or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
- Introduce any virus, Trojan horse, worm, logic bomb, or other material which is malicious or technologically harmful.
- Attack the Service via a denial-of-service attack or a distributed denial-of-service attack.
- Impersonate or attempt to impersonate the Company, a Company employee, an Affiliate of the Company, or another User or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
- License, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, whether in whole or in part, or any content displayed on or provided by the Service.
- Modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service.
- Access the Service in order to build a similar or competitive website, product, or service.
- Misrepresent, with omission or otherwise, the truthfulness, sourcing or reliability of any content on the Website.
- Violate any Applicable Laws including any relevant and applicable anti-money laundering and anti-terrorist financing laws and sanctions programs, such as the Bank Secrecy Act and the U.S. Department of Treasury’s Office of Foreign Asset Controls.
- Use or access the Service to transmit or exchange Digital Assets that are the direct or indirect proceeds of any criminal or fraudulent activity, including terrorism or tax evasion.
- Engage in improper or abusive trading practices, including (a) any fraudulent act or scheme to defraud, deceive, trick or mislead; (b) trading ahead of another user of the Service or front-running; (c) fraudulent trading; (d) accommodation trading; (e) fictitious transactions; (f) pre-arranged or non-competitive transactions; (g) spoofing; (h) manipulation; or (i) knowingly making any trade for the purpose of making a market price that does not reflect the true state of the market.
- Attempt to circumvent any content-filtering techniques, security measures or access controls that FracInvest employs on the Website, including through the use of a VPN.
- Encourage or induce any third party to engage in any of the activities prohibited under these Terms.
4.3.2. User Covenants.
As a condition to accessing or using the Service, you acknowledge, understand, and agree to the following:
4.3.3. Prohibited Uses.
By using the Service, you agree that you will not:
User Account Responsibility.
User understands and agrees that it is solely responsible for maintaining the security of User’s account and control over any usernames, passwords, public and/or private keys, or any other codes that User uses to access the Service. If you are given or create a password to access the Platform, you are responsible for maintaining the confidentiality of your account and your password. If you use a Wallet to access the Platform, the Company has no way of granting you access to the site if you lose access to, or control of, your Wallet. You are responsible for all activities that occur under your account, and you agree to notify the Company immediately of any suspected unauthorized use of your account. The Company is not responsible for any loss that you may incur as a result of any unauthorized person using your account, Wallet. or your password. Any unauthorized access to your account by third parties could result in the loss or theft of funds held in your account and any associated accounts, including your linked bank account(s) and credit card(s).
4.5. Additional Considerations
4.5.2. Transaction Fees.
4.5.3. No Professional Advice or Fiduciary Duties.
4.5.4. Our Use of Account Information.
No Support or Maintenance.
COMMUNICATION WITH USERS
THIRD-PARTY LINKS, PRODUCTS AND APPLICATIONS
Company Intellectual Property.
User acknowledges and agrees that Company (or, as applicable, our licensors) own all legal right, title, and interest in and to all elements of the Platform. The Company logo, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Platform (collectively, the “Company Materials”) are owned by the Company. The Website, Platform, Company Materials, and Content are protected by copyrights, trademarks, or are subject to other proprietary rights. Accordingly, you are not permitted to use the Website or Content in any manner, except as expressly permitted by the Company in these Terms. The Website or Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivatives without the express written consent of the Company or the applicable owner. Except as expressly set forth herein, User’s use of the Platform does not grant User ownership of or any other rights with respect to any content, code, data, or other materials that User may access on or through the Platform. Company reserves all rights in and to the Company Materials not expressly granted to Users in the Terms.
You may not use any Company Content to link to the Website or Content without our express written permission. You may not use framing techniques to enclose any Company Content without our express written consent. In addition, the look and feel of the Website and Content, including without limitation, all page headers, custom graphics, button icons, and scripts constitute the service mark, trademark, or trade dress of the Company and may not be copied, imitated, or used, in whole or in part, without our prior written permission.
Notwithstanding anything to the contrary herein, you understand and agree that you shall have no ownership or other property interest in your account, and you further agree that all rights in and to your account are and shall forever be owned by and inure to the benefit of the Company.
Non-Company Intellectual Property.
Responsibility for User-Generated Content.
Ownership of Content & Right to Post.
License Grant to Use.
Right to Use.
Digital Millennium Copyright Act Compliance
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Website or Service infringes your copyright, you may request removal of those materials (or access to them) from the Website by submitting written notification to our copyright agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works from the Service;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material;
- information reasonably sufficient to permit the Company to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- a statement that the information in the notification is accurate; and
- under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Upon removing any allegedly infringing material, the Company will notify the alleged infringer of such takedown.
- Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
If you elect to send our copyright agent a counter notice, to be effective it must be a written communication that includes the following (please consult your legal counsel or See 17 U.S.C. Section 512(g)(3) to confirm these requirements):
- a physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- adequate information by which we can contact you, including your name, address, and telephone number; and
- a statement that the subscriber consents to the jurisdiction of a federal district court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the Company may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten (10) business days of receiving the copy of your counter notice. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
The Company’s designated copyright agent or authorized official to receive notifications and counter-notifications of claimed infringement is:
FracInvest: Address tbc 25, 445 Broad Hollow Rd, Melville. NY 11747, USA
A summary of the DMCA can be obtained from the U.S. Copyright Office.
ASSUMPTION OF RISK
User Acknowledges the Risk of Cryptocurrency and Smart Contracts.
Company is Not Responsible for Technical Errors on Any Blockchain.
COMPANY IS NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE AVALANCHE NETWORK OR ANY OTHER BLOCKCHAIN NETWORK COMPANY MAY INTERFACE WITH, OR THE METAMASK WALLET OR ANY SIMILAR BROWSER OR WALLET ON ANY BLOCKCHAIN NETWORK INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE AVALANCHE NETWORK OR ANY OTHER BLOCKCHAIN NETWORK COMPANY MAY INTERFACE WITH, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
Upgrades to the Avalanche platform or any other blockchain network with which Company may interface, a hard fork in any such platform, or a change in how transactions are confirmed on any such platform may have unintended, adverse effects on all blockchains using the SPL token standards, including the FracInvest Ecosystem.
The User Acknowledges the Risks of the Platform.
Company Does Not Make Any Representations Regarding the Accuracy of the FracInvest Protocol, the Value of NFTs, Cryptocurrency, or Other Digital Assets.
User Acknowledges Financial Risk of Digital Assets.
The risk of loss in trading Digital Assets can be substantial. You should, therefore, carefully consider whether such creating, buying or selling Digital Assets is suitable for you in light of your circumstances and financial resources. By using the Platform, you represent that you have been, are and will be solely responsible for making your own independent appraisal. Under no circumstances shall the Company be liable in connection with your use of the Platform in connection with your performance of any Digital Asset transactions. Under no circumstances will the operation of all or any portion of the Platform be deemed to create a relationship that includes the provision or tendering of investment advice. User acknowledges and agrees that Company is not a party to any agreement or transaction between one or more Users and/or third-parties involving the purchase, sale, charge, or transfer of NFTs or cryptocurrency.
Violations by Other Users.
LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER
Release of FracInvest; Indemnification.
Limitation of Liability; No Warranty.
IN NO EVENT SHALL FRACINVEST, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE (I) FOR ANY AMOUNT GREATER THAN THE VALUE OF THE SUPPORTED DIGITAL ASSETS ASSOCIATED WITH YOUR DIGITAL ASSET WALLET AT THE TIME OF THE EVENT OR CIRCUMSTANCE GIVING RISE TO YOUR CLAIM OR (II) FOR ANY LOST PROFITS, LOSS OF GOODWILL OR REPUTATION, LOSS OF DATA, DIMINUTION IN VALUE OR BUSINESS OPPORTUNITY, ANY LOSS, DAMAGE, CORRUPTION OR BREACH OF DATA OR ANY OTHER INTANGIBLE PROPERTY OR ANY SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH ANY USE OF THE FRACINVEST SITE OR THE FRACINVEST SERVICES, OR THIS AGREEMENT, EVEN IF FRACINVEST E HAS BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, EXCEPT TO THE EXTENT OF A FINAL JUDICIAL DETERMINATION THAT SUCH DAMAGES WERE A RESULT OF FRACINVEST’S GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT OR INTENTIONAL VIOLATION OF LAW. THIS MEANS, BY WAY OF EXAMPLE ONLY (AND WITHOUT LIMITING THE SCOPE OF THE PRECEDING SENTENCE), THAT IF YOU CLAIM THAT FRACINVEST FAILED TO PROCESS A BUY OR SELL TRANSACTION PROPERLY, YOUR DAMAGES ARE LIMITED TO NO MORE THAN THE LESSER OF THE VALUE OF THE SUPPORTED DIGITAL ASSETS AT ISSUE IN THE TRANSACTION OR THE TOTAL VALUE OF THE SUPPORTED DIGITAL ASSETS ASSOCIATED WITH YOUR DIGITAL ASSET WALLET, AND THAT YOU MAY NOT RECOVER FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES, DIMINUTION IN VALUE OR OTHER TYPES OF SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES
THE FRACINVEST SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FRACINVEST SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. FRACINVEST DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE FRACINVEST SITE, ANY PART OF THE FRACINVEST SERVICES, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE. FRACINVEST DOES NOT GUARANTEE THAT ANY ORDER WILL BE EXECUTED, ACCEPTED, RECORDED OR REMAIN OPEN. EXCEPT FOR THE EXPRESS STATEMENTS SET FORTH IN THIS AGREEMENT, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED UPON ANY OTHER STATEMENT OR UNDERSTANDING, WHETHER WRITTEN OR ORAL, WITH RESPECT TO YOUR USE AND ACCESS OF THE FRACINVEST SERVICES AND FRACINVEST SITE. WITHOUT LIMITING THE FOREGOING, YOU HEREBY UNDERSTAND AND AGREE THAT FRACINVEST WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO: (I) ANY INACCURACY, DEFECT OR OMISSION OF DIGITAL ASSET PRICE DATA, OR ANY ERROR, DELAY OR INTERRUPTION IN THE TRANSMISSION OF SUCH DATA; (II) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING OUR WEBSITES, SOFTWARE, SYSTEMS OPERATED BY US OR ON OUR BEHALF OR ANY OF THE FRACINVEST SERVICES OR ANY WEBSITE OR SERVICE LINKED TO OUR WEBSITE; (III) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN OUR WEBSITES, SOFTWARE, SYSTEMS OPERATED BY US OR ON OUR BEHALF OR ANY OF THE FRACINVEST SERVICES; OR (IV) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR FRACINVEST ACCOUNT.
Fracinvest will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and check issuances are processed in a timely manner but Fracinvest makes no representations or warranties regarding the amount of time needed to complete processing which is dependent upon many factors outside of our control.
IF YOU ARE A NEW JERSEY RESIDENT, the provisions of this Section 11.2 are intended to apply only to the extent permitted under New Jersey law.
ALL INFORMATION OR SERVICES PROVIDED BY THE COMPANY TO YOU VIA THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY AND ANY THIRD-PARTY LICENSORS WITH CONTENT ON THE WEBSITE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, THE COMPANY AND ITS THIRD-PARTY LICENSORS MAKE NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, QUALITY, SUITABILITY, COMPLETENESS, SEQUENCE, TIMELINESS, SECURITY OR AVAILABILITY OF THE WEBSITE OR ANY CONTENT POSTED ON OR OTHERWISE ACCESSIBLE VIA THE PLATFORM. YOU SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY AND ITS THIRD-PARTY LICENSORS ARE NOT LIABLE FOR THE DEFAMATORY, OBSCENE OR UNLAWFUL CONDUCT OF OTHER THIRD PARTIES OR USERS OF THE WEBSITE AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. NEITHER THE COMPANY NOR ANY OF ITS THIRD-PARTY LICENSORS REPRESENT, WARRANT OR COVENANT THAT THE WEBSITE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. THE COMPANY FURTHER MAKES NO WARRANTY THAT THE WEBSITE WILL BE FREE OF VIRUSES, WORMS OR TROJAN HORSES OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SOFTWARE. YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT THE COMPANY, ITS AFFILIATES SHALL NOT BE RESPONSIBLE FOR ANY TERMINATION, INTERRUPTION OF SERVICE, DELAYS, ERRORS, FAILURES OF PERFORMANCE, DEFECTS, LINE FAILURES, OR OMISSIONS ASSOCIATED WITH THE WEBSITE OR YOUR USE THEREOF. YOUR SOLE REMEDY AGAINST THE COMPANY FOR DISSATISFACTION WITH THE WEBSITE OR THE CONTENT IS TO CEASE YOUR USE OF THE PLATFORM, WEBSITE AND/OR THE SERVICE. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION. WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, YOU AGREE THAT THEY WILL BE LIMITED TO THE GREATEST EXTENT AND SHORTEST DURATION PERMITTED BY LAW.
TERM AND TERMINATION
Subject to this Section, this Agreement will remain in full force and effect while you use the Platform or use the Service (the “Term”). We may suspend or terminate your rights to use the Platform or use the Service at any time for any reason at our sole discretion, including for any use of the Platform or the Service in violation of this Agreement. All provisions of the Agreement which by their nature should survive, shall survive termination of Service, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
Governing Law & Jurisdiction.
These Terms are governed by the laws of the USA. You hereby irrevocably consent to the exclusive jurisdiction and venue of the courts in the USA, in all disputes arising out of or relating to the use of the Website not subject to the Arbitration Agreement outlined in Section 13.4.
We shall not be liable for delays, failure in performance or interruption of service which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to, significant market volatility, act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, pandemic, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.
Customer Feedback, Queries, Complaints, and Dispute Resolution
13.5.1 Contact FracInvest.
If you have feedback, or general questions, contact us via our Customer Support webpage at FracInvest.com or email Support@FracInvest.com. FracInvest requires that all legal documents (including civil subpoenas, complaints, and small claims) be served on our registered agent for service of process.
Please note that our registered agent will accept service only if the entity identified as the recipient of the document identically matches the name of the entity registered with the Secretary of State and for which our registered agent is authorized to accept service (FracInvest, Inc.). By accepting service of a legal document, FracInvest does not waive any objections we may have and may raise in response to such document.
13.5.2 Formal Complaint Process.
If you have a complaint with FracInvest, you agree to first contact FracInvest through our support team to attempt to resolve any such dispute amicably. If we cannot resolve the dispute through FracInvest Support, email: Support@FracInvest.com you agree to use the Formal Complaint Process set forth below before filing any arbitration claim or small claims action as described below. You must complete the Formal Complaint Process before filing any arbitration or small claims action. If you do not complete it, then you agree that your claim or action must be dismissed from arbitration or small claims court.
13.5.3 Procedural Steps.
In the event that the dispute is not resolved through your contact with 13.5.1 Support, you agree to use our complaint form to describe your dispute, how you would like us to resolve the complaint, and any other relevant information. If you prefer to send a written complaint via mail, please include as much information as possible in describing your complaint and how you would like us to resolve the complaint, including your support case number and any other relevant information to Support@FracInvest.com We will acknowledge receipt of your complaint form after you submit it. A FracInvest customer relations agent will review and evaluate your complaint based on the information you have provided and information in the possession of FracInvest. The Formal Complaint Process is completed when FracInvest responds to your complaint or forty-five (45) business days after the date we receive your complaint, whichever occurs first.
Applicability of Arbitration Agreement.
Notice Requirement and Informal Dispute Resolution.
Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to:
FracInvest Address 25, 445 Broad Hollow Rd, Melville. NY 11747, USA
After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Any dispute, claim, interpretation, controversy, or issues of public policy arising out of or relating to the FracInvest Ecosystem, the Website, these Terms, or the Services, including the determination of the scope or applicability of Section 13.4 will be determined exclusively by arbitration held in the USA, and will be governed exclusively by the Arbitration Act, 2013 (the “Arbitration Act”). All rights and obligations hereunder shall be governed by the Laws of the USA, without regard to the conflicts of law provisions of such jurisdiction. The Parties submit to the non-exclusive jurisdiction of the courts of the USA and any courts competent to hear appeals from those courts. For purposes of Section 13.4 “Proceeding” means any complaint, lawsuit, action, suit, claim (including a claim of a violation of applicable law), or other proceeding at law or in equity, or order or ruling, in each case by or before any governmental authority or arbitral tribunal.
The arbitrator will be selected from the roster of arbitrators at The BVI International Arbitration Centre (“BVI IAC”) unless the Parties agree otherwise. If the Parties do not agree on the selection of a single arbitrator within ten (10) days after a demand for arbitration is made, then the arbitrator will be selected by BVI IAC from among its available professionals. Arbitration of all disputes and the outcome of the arbitration will remain confidential between the Parties except as necessary to obtain a court judgment on the award or other relief or to engage in collection of the judgment.
The Parties irrevocably submit to the exclusive jurisdiction of the local courts located in the USA, with respect to this Section 13.4 to compel arbitration, to confirm an arbitration award or order, or to handle court functions permitted under the Arbitration Law. The Parties irrevocably waive defense of an inconvenient forum to the maintenance of any such action or other Proceeding.
The arbitrator may grant injunctive relief, including temporary, preliminary, permanent, and mandatory injunctive relief, in order to protect the rights of each party, but will not be limited to such relief. This provision for arbitration will not preclude a Party from seeking temporary or preliminary injunctive relief (“Provisional Relief”) in a court of Law while arbitration Proceedings are pending in order to protect its rights pending a final determination by the arbitrator, nor will the filing of such an action for Provisional Relief constitute waiver by a Party of its right to seek arbitration. Any Provisional Relief granted by such court will remain effective until otherwise modified by the arbitrator.
Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions.
30-Day Right to Opt Out.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Wallet address, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with the Company. Mail your written notification by certified mail to:
FracInvest Address: 25, 445 Broad Hollow Rd, Melville. NY 11747, USA
Right to Waive.
Survival of Agreement.
Emergency Equitable Relief.
Claims Not Subject to Arbitration.
Attorneys’ Fees and Costs.
In addition to any relief, order, or award that is entered by an arbiter, or court as the case may be, any Party found to be the substantially losing Party in any dispute shall be required to pay the reasonable attorneys’ fees and costs of any Party determined to be the substantially prevailing Party, and such losing Party, shall also reimburse or pay any of the arbitrator’s fees and expenses incurred by the prevailing Party in any arbitration. In the context of this Agreement, reasonable attorneys’ fees and costs shall include but not be limited to:
13.5.1. legal fees and costs, the fees and costs of witnesses, accountants, experts, and other professionals, and any other forum costs incurred during, or in preparation for, a dispute;
13.5.2. all of the foregoing whether incurred before or after the initiation of a Proceeding; and
13.5.3. all such fees and costs incurred in obtaining Provisional Relief.
It is understood that certain time entries that may appear in the billing records of such Party’s legal counsel may be redacted to protect attorney-client or work-product privilege, and this will not prevent recovery for the associated billings.
Third Party Beneficiaries.
Relationship of the Parties.
FracInvest is an independent contractor for all purposes. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between you and FracInvest, or authorize you to act as agent of FracInvest.
Company Contact Information. Questions can be directed to the Company at:
FracInvest Address 25, 445 Broad Hollow Rd, Melville. NY 11747, USA